STANDING COMMITTEE ON GOVERNMENT AGENCIES
COMITÉ PERMANENT DES ORGANISMES GOUVERNEMENTAUX
Tuesday 3 March 2020 Mardi 3 mars 2020
The Chair (Mr. John Vanthof): Our next item of business is a review of intended appointments. First, we have the honourable Edward Then, nominated as a member of the Death Investigation Oversight Council. He is appearing this morning via teleconference.
The Chair (Mr. John Vanthof): Hi. My name is John Vanthof. I’m the Chair of the committee. Because it’s a teleconference, when the members ask a question, we’re going to ask if they could provide a brief description—because we can’t see face to face. It would be much nicer if you knew who you were talking to. Is that okay with you?
The Chair (Mr. John Vanthof): Okay. As you may be aware, you have the opportunity, should you choose to do so, to make an initial statement. Following this, there will be questions from members of the committee. With that questioning, we will start with the official opposition, followed by the government, with 15 minutes allocated to each recognized party. Any time you take for your statement will be deducted from the time allotted to the government.
To the members of the standing committee, I want to thank you for giving me the opportunity to discuss my career and qualifications. I hope to provide you with some insight into how I can make a positive contribution to the important work of the Death Investigation Oversight Council.
Please accept my thanks for accommodating me by teleconference this morning. I am currently on my family vacation in Florida and very much appreciate your consideration in allowing me more time with my family.
By way of background, I was called to the bar in 1972 after obtaining my law degree from U of T. I spent the next 17 years as crown counsel of the special prosecution and appeals branch of the Ministry of the Attorney General.
I was honoured to be named Queen’s Counsel in 1982. As counsel, I represented the crown in the Court of Appeal on hundreds of appeals and on several special prosecutions. Also, I have appeared in the Supreme Court of Canada as counsel for the crown on 13 occasions. From 1984 to 1989, I served as director of this branch. I was appointed to the Supreme Court of Ontario trial division in 1989. It’s now called the Superior Court of Justice. In April 2019, I retired in accordance with the mandatory retirement policy.
As a trial judge, I was primarily engaged in criminal cases. I have tried approximately 25 to 30 murder cases over the years. Also, I have been very active in the Divisional Court, which is an appellate court, sitting on panels of three that hear appeals or judicial reviews of decisions of the myriad administrative tribunals governed by the statutes of Ontario, as well as decisions of single judges of the Superior Court.
From 2007 to 2013, I served as the regional senior judge for the Toronto region, which is comprised of approximately 90 judges. The regional senior judge has the delegated authority of the Chief Justice of Ontario to assign cases and to administer the region in order to ensure quality justice on the part not only of judges, but also to devise policies to enable staff to provide speedy and accessible justice for the citizens of Toronto.
As a former judge, I have observed how powerful the expert evidence of pathologists is in determining the end outcome in certain cases and, accordingly, it is in my view crucial that our forensic pathologists be held to the highest standard in order to avoid a miscarriage of justice. I believe that I have the experience and the determination to make sure that the standard is maintained and enhanced.
I’ve come to understand that the Auditor General has identified a number of issues pertaining to the operation of the DIOC, as well as the coroner’s system, as well as the forensic pathologist, which should be addressed. At this point, without going into specifics, these are all issues with which I have become generally familiar during my tenure as part of the executive of my court.
Mr. Edward Then: Yes. As I indicated, I retired in April and I had an occasion in the course of social conversations to mention that I wanted to do some part-time work in terms of an area that I have a great interest in. She mentioned that there might be an opportunity to do so on the DIOC. As a result of that, I applied for the appointment. I thought it would be a way to perhaps give back in terms of some of the experiences that I had had.
Mr. Taras Natyshak: Fair enough. Thanks for your years of service and your work on behalf of the province throughout your distinguished career. We appreciate you and you wanting to serve in other capacities.
Mr. Edward Then: Yes. I can tell you that in terms of trying to prepare myself somewhat for this interview, I thought it would be appropriate generally to become familiar with some of the, perhaps, outstanding issues that the office is facing. One of them, of course, is this situation with respect to the Hamilton closures, so I have some general knowledge about it, certainly.
Mr. Taras Natyshak: Excellent. So in relation to that, do you think that the staff at that unit would be able to carry out effective, transparent and accountable work by merging their operations with the Toronto unit?
Let me just address that the Auditor General—and I have read that report in preparation—made the observation that there should have been consultation with the DIOC before the closure took place, and I certainly think that that is a valid point to make. I think that if the decision is made on the basis that there wouldn’t be any impairment, shall we say, of public safety, whether it’s matters of staffing or anything else, then that’s fine and dandy. But I obviously agree that there should have been some prior consultation.
Mr. Taras Natyshak: Well, in light of the Auditor General’s comments on the situation, do you think and believe it’s incumbent and/or prudent for the Ontario government to investigate why the decision was made to shutter the Hamilton unit?
Mr. Edward Then: No. Well, I don’t know whether I would go so far as to say that the decision should be investigated, but I think that, quite frankly, at least the DIOC point of view—and that was what I was most concerned with, because obviously I’m applying to be a member of an oversight committee. I would have thought that at a minimum, DIOC should have been consulted with respect to what seems to be a fairly significant change in policy.
Mr. Taras Natyshak: One last question within that same context: The Auditor General, of course, released a report that found that the Office of the Chief Coroner of Ontario’s forensic pathology services don’t have effective processes to demonstrate that their coroners and pathologists consistently conduct high-quality death investigations. In your experience—and now, through your imminent appointment—do you think that the closure of the Hamilton forensic pathology unit will help or harm this situation?
Mr. Edward Then: Again, without being privy—and you’ve raised the point—to the precise reasons why that was done, whether it was done for efficiency reasons, whether it was done for cost reasons, the basis upon which it should have been done, I think, is to make sure that there wouldn’t be any compromise of public safety. I don’t know whether I can comment further, because I really don’t know the facts around it. I understand that what has happened is that the decision has been made to move all of the autopsies from Hamilton to Toronto and that perhaps that is justified on a number of bases, whether it’s costs or whether it’s because of efficiencies or because of expertise. But without knowing the precise facts, it’s very difficult to comment on the merits of all of this.
Justice Then, I really appreciate you accommodating us here as committee members. We certainly value your testimony and wish you well. During your vacation, hopefully it’s nice and sunny and warm there. Thanks so much for joining us. Best wishes in your new role.
With your experience, specifically—I know you touched a little bit on that in your opening statement. But from your experiences and observations of the death regime in Ontario—how that whole system works and is put together—and your interest in getting onto this board, what would you say are some of the challenges that are facing our system?
Mr. Edward Then: First of all, let me just speak to my direct experience. In terms of being a trial judge, especially, obviously, in the murder cases, I have heard the testimony of many pathologists, and I will say that I think they maintain a very high standard. I’ve been impressed with the testimony in court. Having said that, obviously, one of the challenges of anyone serving on the DIOC is to maintain that standard. I understand that the chief pathologist has the responsibility for maintaining that by obtaining the latest information in that field, and I am, as I say, impressed by what I see in court.
I must say that I did review the comments of the Auditor General, and obviously there seems to be room for improvement even in the pathology section having to do with some of the peer review issues, having to do with mistakes that are made and significant errors. So these are—
Mr. Edward Then: I was in the process, I think, of having good things to say about pathologists in court. I was making the point that there are some valid observations made by the Auditor General in terms of improvement.
I think one of the main things that struck me was that it may be that the DIOC at this point perhaps needs to obtain some improvement in terms of reporting, in terms of key areas, both with respect to pathologists and coroners, because obviously you can’t fix what you don’t know about. So there are challenges. Also, there are, from my point of view, good things to say about the way the system operates. So I approach the task with an open mind, but really conscious that things can be improved.
Mr. Rick Nicholls: Good morning, Justice Then. It’s an honour to have the opportunity to speak with you. I’m Rick Nicholls. I’m the MPP from Chatham-Kent–Leamington, and I also have an opportunity to occasionally wear the white tabs as I serve as the government Deputy Speaker.
One of the functions of the DIOC is, of course, a public complaints process. As such, issues can be very sensitive, as I’m sure you’re very aware. What would be your style in dispute resolution when interacting with fellow council members or other relevant parties on those very sensitive issues?
Mr. Edward Then: I think that’s a good question. When I was a judge, I quickly came to realize that, in every dispute, unfortunately, there has got to be a winner and a loser. Similarly, in terms of complaints, the complainant cannot always be successful. But what is crucial, in my opinion, is that in each situation there has to be a full and fair hearing provided to all parties. In particular, clear and reasonable reasons must be provided to the unsuccessful party.
My way of dealing with complaints—or with any kind of a dispute, really—is to make sure that, at the end of the day, the party that is unsuccessful can go away from the situation and say, “You know, I may have lost, but I was heard.”
I realized that when you’re getting complaints involving the death of a loved one, many of these people are in a state of grief and perhaps even anger. And then, as you say, it’s particularly important to be sensitive and to have some degree of empathy with respect to the emotions that these people are feeling.
But as I say, what I’ve learned over the years is that no matter who it is that is unsuccessful when they’re in court or by way of a complaint—I was used to having to deal with some of these when I was the regional senior judge—the key to it all is to make sure that you provide people with a full and fair hearing, so that they go away from this thinking, “Well, I might have lost, but they care, they heard me, and that’s the way it goes.” So I guess my style is to try to approach complaints with that attitude and to try to have my fellow councillors—or people that are with me on a committee, or whatever it is that constitutes the complaints committee—adopt the same attitude.
Mr. Edward Then: Well, I know, again, that there is some controversy, I guess, with respect to this because, as the Auditor General has pointed out, the DIOC does not have the power to enforce its recommendations. She also points out that the DIOC does not receive reports with respect to key aspects of their operations. So, in theory, clearly it appears to me that the duty of oversight is diminished if the recommendations of the DIOC can be ignored either by the ministry or by the respective chiefs.
But I approach this by saying that, again, I’m not sure how this observation stands up as a practical matter, because I really don’t know how or to what extent either the ministry or the chief coroner and chief pathologist respond to the recommendations of the DIOC which pertain to them. If the DIOC recommendations are routinely accepted, then the power to enforce recommendations would not appear to need to be a matter of urgency, at least. Even if the recommendations of the DIOC are rejected by the chiefs, it’s still open for the ministry to overrule them and implement the recommendations. So in terms of where the DIOC stands as the oversight body, I’m not exactly sure what it is that I can say about governance because I don’t know, as a practical matter, what happens to these recommendations.
Now, I do understand, after looking at some of the material, that many of the recommendations are in fact implemented and that the ministry, I think, has even gone to the extent of making legislative changes based on recommendations. So without being a member of that body and having full information, I’m reluctant to make a firm comment about governance. To me, it’s an issue that I think I’d need to have fuller information about. I also gather that these recommendations or what happens to them are not matters of public knowledge. I’m in a bit of a quandary as to express a firm opinion.
One thing I would like to say is that I do take to heart one of the observations of the Auditor General, and that is that the chiefs be required to report with respect to key areas of their operation; because as I think I indicated earlier, it’s really difficult to exercise even an advisory function, much less a oversight function, when you don’t know, because there isn’t any reporting in key areas where the problems are.
In terms of governance, I don’t really know how I can elaborate much more than what I’ve said, perhaps. I think I understand the difficulties, but at the moment, I’m not sure I can come up with any kind of a firm answer as to where the DIOC stands in the scheme of things. One thing I am sure of, though, is that there should be a dedication to making sure that the province is served the administration of justice and that the coroners serve the general task of public safety. How that precisely is to be done: I think I would need further information.
I hope that that is helpful to some extent. I just find myself at a bit of a disadvantage in discussing governance when I’m not sure as to precisely what the situation is as to these recommendations that the DIOC makes.
As you may be aware, you have the opportunity, should you choose to do so, to make an initial statement. Following this, there will be questions from members of the committee. With that questioning, we will start with the government, followed by the official opposition, with 15 minutes allocated to each recognized party. Any time you take in your statement will be deducted from the time allotted to the government. The floor is yours, sir.
Mr. Peter McSherry: Good morning, Chair and members of the committee. First, I must start by expressing my gratitude for being nominated for the position at the Guelph Police Services Board. I am also grateful to this committee for your consideration of my application for appointment to this position.
As you may see from my application, I have practised law in Guelph for approximately 23 years. In my practice, I have had the privilege of representing people through the trials and tribulations of their lives. I have assisted people in seeking justice in their employment matters, whether that be before courts, human rights tribunals or through other negotiations. I’ve also had the honour of helping people buy and sell their homes, both establishing themselves and rebuilding themselves after adversity; and in dealing with estate matters. In short, I’ve had the honour of being a trusted adviser for regular people when they are facing challenging and hard times.
You will also see from my application that I have maintained a commitment to volunteer in the Guelph community. I am active in the leadership of service clubs, first with the Kiwanis Club of Guelph, serving as secretary and then president, and currently at the Rotary Club of Guelph, where I am on the board of directors and have been involved extensively in committee work.
I have been involved in organizations that provide services to those with disabilities, first with the Guelph Wellington Association for Community Living, and then with Torchlight Services as both a board member and as their secretary. Currently, I am the secretary and a board member for Bracelet of Hope, which provides foster care to AIDS orphans in Lesotho, Africa, and we are also setting up the establishment of mobile health units.
The government of Ontario passed the Comprehensive Ontario Police Services Act, the new policing legislation, in 2019. Are you familiar with any of the upcoming changes that will change policing in Ontario?
Mrs. Nina Tangri: Thank you for joining us, Mr. McSherry. Employment law and human rights are among your practice areas, and one of the most important roles of a police services board is providing good governance. How would these experiences assist you as a member of the police services board?
Mr. Peter McSherry: Well, I think practising employment law has given me good insight into the need for accommodation. Quite frankly, I think a big concern currently is going to be the mental health of the officers. We have well-trained officers, but they work under adverse conditions. I think it’s going to be very difficult for our officers to provide the service that we expect and for them to be as respectful as possible to the citizens if we don’t look out for their mental health. If we treat them poorly or have them in working conditions that are not as respectful as they could be, it will be very difficult for them to turn around and treat the general public, under the stressful circumstances that they meet them in, in the manner that we would like to see and expect.
Mr. Rudy Cuzzetto: Thank you for being here today. I noticed that you’re the director of the Rotary Club of Guelph. It tells me that you’re very involved in your community, and I find that very important. I look at myself—I was involved at the Mississauga Canoe Club; the ratepayers’ association, the beautification, education and the security committees; as well as the parent council for over 15 years.
Mr. Peter McSherry: I certainly believe that the work that Rotary does with supporting youth at risk is very important. We work with Indigenous communities a lot with water. We also deal with foreign aid, too, in providing services, certainly, to Africa and India, and helping make sure that people have access to clean water and medications, and literacy is a very important aspect.
We also, quite frankly, have started a major project recently that’s an offshoot of my Rotary Club, which is Food4Kids, which is looking after children who live in the Guelph area, certainly, who don’t have enough food, and making sure that they have food to be able to function properly at school, and moving into making sure that they actually can have food available for them on the weekends, so that they come back to school ready to learn.
Mr. Lorne Coe: Thank you, Chair, and through you, welcome, sir, and thank you very much for being here today and for your delegation. Based on your practical experience, which is quite vast, and also coupled with your volunteer experience in the community, and the police services board, in particular, what contributions would you like to make to the board?
Mr. Peter McSherry: I am going to be very interested in how the officers are treated, looking out for the mental health of the officers to make sure that they are in a position to be the most effective to our community. I think that’s perhaps what would come from my employment law perspective.
I think the other aspect of it that is going on in Guelph is that you see a community that has grown dramatically in size in the 23 years that I’ve been in the community, since I started practising law, which has brought in a lot of people from outside the area. I think it’s important that police services, as well as any other service, make new contacts with the new entrants to the city and the new groups that are coming through, and reflects the changing demographics and diversity of the community. I think that’s very important, to make sure that that always remains front and foremost at the police services board.
Mr. Peter McSherry: No, I wasn’t. Over the years, I have been directed by certain people, but not for any particular position—people suggesting that if you’re looking to give back and work with your community that you should go to the Ontario appointments website and put your name forward. But not for any particular position.
Mr. Peter McSherry: Well, a lot of telemarketers seem to believe that I am a member of the federal party right now, so I’m going to go with a yes on that one, and I believe that I am currently a member of the provincial party, as well.
Mr. Taras Natyshak: Okay. Are you Peter McSherry of Guelph, Ontario? Did you write an editorial in 2012 to the Toronto Sun around the issue of the use of force during arrests? Do you recall doing that?
Mr. Taras Natyshak: Do you have any experience or any training in the use-of-force continuum and how it’s applied throughout the province, during arrests? Do you have any thoughts on any reforms that have been presented around the incidents of excessive use of force?
Mr. Taras Natyshak: Your legal mind, your legal training, will be an asset, of course, to the police services board, I would imagine, so we’ll lean on you a little bit. By and large, these might be issues that you may have to deal with throughout your tenure as a board member, and I’m sure your experience will serve you well.
The Chair (Mr. John Vanthof): Concurrence in the appointment has been moved by Mr. Coe. Any further discussion? Seeing none, I would like to call a vote. All those in favour? Opposed? That motion carries.
The Chair (Mr. John Vanthof): Concurrence in the appointment has been moved by Mr. Coe. Any further discussion? Seeing none, I would like to call a vote. All those in favour? Opposed? That also carries.